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Violation or not?

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I just received a form letter from a law firm there is no attorney signature or even a name just the firm name. I have been reading the FDCPA and I am thinking this is NOT a violation but, thought I would ask to be sure.

"As you should be aware our office was hired to collect the debt you owe. We have received information that you are employed, own property, or you fit criteria which makes your account otherwise suit worthy. Our client has authorized us to file a lawsuit if necessary."

They also mention they will request court costs for filing fees and if authorized request the court to award attorney's fees.

This same firm does have a credit inquiry on my credit report can they do that or can only the creditor/debt collector do that?

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When you say from a law firm, you mean it said something like "Douche & Baggins, Attorneys At Law" or "Law Offices of Douche & Baggins" at the top, and also listed some licensed attorneys? Also, did it include any disclaimer anywhere in the letter that notified you that no attorney had reviewed the case? A disclaimer would typically state "At this time, no attorney with this firm has reviewed the particular circumstances of your account."

What you describe could actually be a violation, but I hesitate to say that it is. Unless, that is, it is the first communication you have received from them, or it is within 30 days of the first communication.

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They can pull your credit report. Save the letter, usually these are not violations unless they threaten to do something they cannot legally do. Arizona is a community property state, be advised.

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When you say from a law firm, you mean it said something like "Douche & Baggins, Attorneys At Law" or "Law Offices of Douche & Baggins" at the top, and also listed some licensed attorneys? Also, did it include any disclaimer anywhere in the letter that notified you that no attorney had reviewed the case? A disclaimer would typically state "At this time, no attorney with this firm has reviewed the particular circumstances of your account."

What you describe could actually be a violation, but I hesitate to say that it is. Unless, that is, it is the first communication you have received from them, or it is within 30 days of the first communication.

Yes on the heading,

No on the disclaimer,

It is the 2nd letter dated 2 wks after the first one,

The first letter did include this "We have not, nor will we, review the details of your account status, unless you so request in writing."

I responded to the first letter with a DV letter disputing and electing arbitration.

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This sounds like it is not the initial letter, but please tell me it is.

If is not the first letter, no violation. However, it can turn into a violation if they never sue you and then get rid of the account.

They have implied a lawsuit but let a little opening with "if necessary" They can always say they found it not to be necessary. However, the court would look at it from the prespective of the least sophisicated consumer.

In other words, if they don't sue you, sue them for not suing you. I settled with an agency once because they did not sue me when the threatned to sue me. Now that was a hoot. I'm suing you because you would not sue me. :)

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This sounds like it is not the initial letter, but please tell me it is.

If is not the first letter, no violation. However, it can turn into a violation if they never sue you and then get rid of the account.

They have implied a lawsuit but let a little opening with "if necessary" They can always say they found it not to be necessary. However, the court would look at it from the prespective of the least sophisicated consumer.

In other words, if they don't sue you, sue them for not suing you. I settled with an agency once because they did not sue me when the threatned to sue me. Now that was a hoot. I'm suing you because you would not sue me. :)

Sorry Coltfan it is the second letter!

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I would take it as a violation if they don't sue. You need to understand through our eyes of being the least sophisticated consumer. Are they local attorneys? If so, they may be gearing up to file suit.

"A debt collection letter on an attorney's letterhead conveys authority and credibility." Crossley v. Lieberman, 868 F. 2d 566, 570 (3d Cir. 1989). The clear implication of any attorney letter is a threat of suit.

Edited by Linda7
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This sounds like it is not the initial letter, but please tell me it is.

If is not the first letter, no violation. However, it can turn into a violation if they never sue you and then get rid of the account.

They have implied a lawsuit but let a little opening with "if necessary" They can always say they found it not to be necessary. However, the court would look at it from the prespective of the least sophisicated consumer.

In other words, if they don't sue you, sue them for not suing you. I settled with an agency once because they did not sue me when the threatned to sue me. Now that was a hoot. I'm suing you because you would not sue me. :)

I would say it is a violation if A) it is the first letter (we know it's not) or B) it is within 30 days or less of the first letter or C) No attorney actually reviewed the account prior to sending the letter. It's not signed, so C is a strong possibility here. The implication here that an attorney has reviewed the account and is poised to sue is a strong one.

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Yes on the heading,

No on the disclaimer,

It is the 2nd letter dated 2 wks after the first one,

The first letter did include this "We have not, nor will we, review the details of your account status, unless you so request in writing."

I responded to the first letter with a DV letter disputing and electing arbitration.

I would be more curious about this letter. The lawyer must determine what rights the parties have and whether applicable statutory or other legal requirements have been met. The lawyer must have authority as well as responsibility to determine the legal steps to be taken and to negotiate in behalf of the client. None of these factors can exist if all the lawyer does is lend the lawyer's name and letterhead to the client's use. (Iowa ethics opinion 91-24, Nov. 14, 1991.)

That first letter came from the law firm, but no one signed it and they admitted they didn't review it and wouldn't review it unless you asked them to. :rolleyes:

Similarly, Texas Ethics Opinion 484 states: When an attorney signs a debtor letter or authorizes someone under his or her direct supervision to sign such a letter, such action manifests that the attorney has exercised professional judgement that the particular letter is appropriate for the particular debtor and for a debtor's particular account. The rules require that an attorney should review the debtor's file and determine that the letter to be sent is appropriate for this particular debtor. A lawyer must exercise care and independent judgement to make sure that each debtor's letter is accurate and appropriate as to the account of the debtor.

Even though there was no signature, the letter came from a law firm and that is enough to put "extra concern" on you. And how could they possibly have come to the determination that they may file a law suit against you in regard to this debt, when they openly admitted they had not reviewed the account? I would consider that a violation.

Edited by Linda7
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I would be more curious about this letter. The lawyer must determine what rights the parties have and whether applicable statutory or other legal requirements have been met. The lawyer must have authority as well as responsibility to determine the legal steps to be taken and to negotiate in behalf of the client. None of these factors can exist if all the lawyer does is lend the lawyer's name and letterhead to the client's use. (Iowa ethics opinion 91-24, Nov. 14, 1991.)

That first letter came from the law firm, but no one signed it and they admitted they didn't review it and wouldn't review it unless you asked them to. :rolleyes:

Similarly, Texas Ethics Opinion 484 states: When an attorney signs a debtor letter or authorizes someone under his or her direct supervision to sign such a letter, such action manifests that the attorney has exercised professional judgement that the particular letter is appropriate for the particular debtor and for a debtor's particular account. The rules require that an attorney should review the debtor's file and determine that the letter to be sent is appropriate for this particular debtor. A lawyer must exercise care and independent judgement to make sure that each debtor's letter is accurate and appropriate as to the account of the debtor.

Even though there was no signature, the letter came from a law firm and that is enough to put "extra concern" on you. And how could they possibly have come to the determination that they may file a law suit against you in regard to this debt, when they openly admitted they had not reviewed the account? I would consider that a violation.

A letter from a Law Firm could be taken as a threat of suit, an unnamed, unsigned letter is a violation indeed.

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A letter from a Law Firm could be taken as a threat of suit, an unnamed, unsigned letter is a violation indeed.

Just because the letter is from a law firm doesn't mean a suit is being threatened. It would depend upon the contents of the letter.

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I have received a similar letter, except it is their very first letter. I'll paraphrase:

JDB has referred above account to us. Demand for payment is hereby made.

(FDCPA verbiage, if you notify us in 30 days, verification etc. etc.)

At this time, no attorney with this firm has personally reviewed the particular circumstances of your account.

Sincerely,

(No Signature)

Douche & Baggins, P.S.

How could something like this possibly be construed as a violation?

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I have received a similar letter, except it is their very first letter. I'll paraphrase:

JDB has referred above account to us. Demand for payment is hereby made.

(FDCPA verbiage, if you notify us in 30 days, verification etc. etc.)

At this time, no attorney with this firm has personally reviewed the particular circumstances of your account.

Sincerely,

(No Signature)

Douche & Baggins, P.S.

How could something like this possibly be construed as a violation?

What you describe there is not a violation. If there is something extra in the letter that you didn't list, it could be, but that by itself is not a violation. If they signed it, it could have been a violation. If they had left out that disclaimer, it could have been a violation.

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"As you should be aware our office was hired to collect the debt you owe. We have received information that you are employed, own property, or you fit criteria which makes your account otherwise suit worthy. Our client has authorized us to file a lawsuit if necessary."

I think the least sophisticated consumer would read this and take it as a threat of legal action.

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"As you should be aware our office was hired to collect the debt you owe. We have received information that you are employed, own property, or you fit criteria which makes your account otherwise suit worthy. Our client has authorized us to file a lawsuit if necessary."

I think the least sophisticated consumer would read this and take it as a threat of legal action.

I don't think it's just the words you highlighted. It's the whole paragraph.

It's not an absolute threat to sue, but the law firm's claim to have information about the consumer's employment status and ownership of property coupled with the authorization to sue can be intimidating.

Then, you have the words "if necessary". Replace "necessary" with:

1. We feel like it.

2. You don't play the game our way.

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I don't think it's just the words you highlighted. It's the whole paragraph.

It's not an absolute threat to sue, but the law firm's claim to have information about the consumer's employment status and ownership of property coupled with the authorization to sue can be intimidating.

Then, you have the words "if necessary". Replace "necessary" with:

1. We feel like it.

2. You don't play the game our way.

Plus the letter was sent prior to the expiration of the 30 day validation period. A sophisticated consumer is going to look at that and say "Yup, they're a law firm and law firms do sue people." The village idiot is going to look at that and say "OMFG! Blaaarg! I'm gonna get sued!"

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Thanks for the input everyone.

I did win one lawsuit last year with everyones help. It was my first case and I never had counterclaims, actually I never really looked for violations so I am a little confused on what to look for.

Even though I did a good job at trial after the judge denied my MTC arbitration as she said she was a better arbitrator. I still get sick thinking about doing this all over again. So I decided to elect arbitration and initiate before being sued this time.

After the atty's 1st letter I sent a simple DV letter including electing arbitration CMRRR to the atty and PRA. The atty sent me a statement 60 days later and I then sent an arbitration election letter (probably didn't have to send another one) to both again CMRRR.

So thinking about initiating since it is only $50, which is why I am trying to find out if there are any violations yet! No landline any longer so no phone violations.

The debt is under $1,000.

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So on the credit report PRA lists itself as a factoring company and that it is an open account. I've been reading other posts regarding these issues but no definite answers as to if they are violations.

Any input on this?

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I would dispute their tradeline and see what happens...if they verify, then you can send PRA a 623 letter and you might be able to get an FCRA violation out of them...

Sorry haven't disputed anything yet, when I dispute is that with the credit bureaus?

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This sounds like it is not the initial letter, but please tell me it is.

If is not the first letter, no violation. However, it can turn into a violation if they never sue you and then get rid of the account.

They have implied a lawsuit but let a little opening with "if necessary" They can always say they found it not to be necessary. However, the court would look at it from the prespective of the least sophisicated consumer.

In other words, if they don't sue you, sue them for not suing you. I settled with an agency once because they did not sue me when the threatned to sue me. Now that was a hoot. I'm suing you because you would not sue me. :)

What if the statute of limitations on the debt is several years but the letter receipient only has one year to sue on the fdcpa "violation". Wouldn't it be an absolute defense to the attorneys that as long as the sol hasn't run, they can sue at anytime since no time frame was mentioned in the letter? Also, could you please explain how to over come a possible defense that the letter did not say they will sue, but are authorized to. What if they decide that for what ever reason they don't want to sue?

Do you have any case law where this violation was litigated in favor of the consumer?

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You are totally misconstruing basic facts of law. SOL is state, FDCPA is federal, they have no relationship to each other. Letters are standard, they advise you that if you do not do such and such they have the option of suing. This is not necessarily a violation. The SOL for an FDCPA violation is one year. The SOL for a credit card debt is what is specified in the credit card agreement according to the choice of law of the home state forum. You have a lot of studying to do. You need to start from the basics. Letters basically mean nothing in a court of law unless a suit has been filed. Prior to that, they MAY constitute a violation, but you have to be able to prove the violation. Judging from your post, I would have to say you are not up to this at this time.

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I can see Dr. Evil's point. If there's 2 years left on the SOL, but you have only have 1 year to sue for an FDCPA violation, you can't get them.

The SOL for an FDCPA violation is one year. The SOL for a credit card debt is what is specified in the credit card agreement according to the choice of law of the home state forum.

Not necessarily. There are a number of factors involved in choice of law or conflict of law. One of those is whether a state's court has ruled the SOL to be procedural. If an issue is ruled to be procedural, the laws of the forum state apply.

Even if a state court has ruled the SOL to be substantive (either state's laws could apply), the court may apply the "significant relationship test". The court would then decide which state bears the greater relationship to the issue.

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